MEHARCHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal by the accused Meharchand, Surja, Chunna and Dedia, all of whom have been convicted by the learned Sessions Judge, Bikaner, under secs. 302 and 452, I. P. C, and have been sentenced to imprisonment for life and three years' rigorous imprisonment respectively. Both the sentences have been made to run concurrently.

(2.) THE prosecution case is that there are two factions of Visnois in village Udsar. One of them is headed by one Ramkaran, who was also an accused in this case, but was acquitted by the trial court. THE leader of the other faction was the deceased Dhonkal. THEre was a long standing enmity between these two factions and previously some murders had also taken place, as a result of this enmity. To add fuel to the fire, there arose some dispute in respect of a field between Samela, belonging to the party of the accused, and one Madhosingh. Amar Singh son of Madho Singh obtained the possession of the field with the help of the Police from Samela, Meharchand and Chunna. THE deceased Dhomkal helped Amar Singh in bringing that field under cultivation and even lent his plough to Amar Singh. This act of Dhonklal, it is alleged by the prosecution, further strained the relations between the two parties and there were cases under sec. 147 and 447, I. P. C. , between Amar Singh and the accused. THE deceased Dhonkal appeared as a witness on behalf of Amar Singh. It is alleged by the prosecution that on August 24, 1966, at about 3 P. M. , the accused Ram Karan, Meharchand, Surja, Chunna, Dedia and Manphool attacked Dhonkal who ran into the house of his nephews P. S. 1 Laluram and P. W. 2 Ratiram, sons of Bhagirath. Ramkaran had a gun, Meharchand and Dedia had 'selas' while the rest of the accused were armed with lathis. PW. 1 Laluram and P. W. 2 Ratiram, according to the prosecution, were sitting under the 'neem' tree in their house at that time. Ram Karan is alleged to have tired the gun in the air, and Meharchand and Dedia struck blows with 'selas' and the rest of the accused dealt lathi blows to Dhonkal, as a result of which he fell down, badly injured, in the house of Ratiram. P. W. 3 Kasba and P. W. 4 Laluram son of Birbal are said to have arrived on the spot while beating was in progress and they witnessed the same. At that time a motor car happened to pass by that way in front of the house of Ratiram and the sound of the approaching car made the accused flee away from the spot. That motor car was utilised for taking the deceased Dhonkal to the hospital at Nokha. All the four witnesses, namely, Lalu son of Bhagirath; Ratiram, Kasba and Lalu son of Birbal accompanied Dhonkal to the hospital. PW. 1 Lalu lodged an oral report of the occurence at the Police Station, Nokha, which is at a distance of about 20 miles from the place of occurrence, namely, village Udsar. This report was written out by Jamadar Raghunath Singh and the copy of the same has been placed on the record and marked Ex. P. 1. Dhonkal who had, in the meanwhile, been admitted in the hospital, was found to be in a precarious condition. THE Doctor Asharam Acharya P. W. 7 Incharge, Primary Health Centre, Nokha, in view of the serious condition of Dhonkal started recording his dying declaration, and the Tehsildar Magistrate, Nokha, Shri Hiralal Kaushik, P. W. 12, also arrived at the Primary Health Centre while Dr. Acharya was recording the statement of Dhonkal. That dying declaration has been placed on the record and marked Ex. P. 8; Shri Hiralal Kaushik, Tehsildar-Magis-trate, Nokha, also made an endorsement on Ex. P. 8 that it had not been possible to obtain the thumb impression of the deceased Dhonkal on Ex. P. 8 as the hands of Dhonkal had been badly injured. THE condition of Dhonkal began to deteriorate and it was thought proper to send him to Bikaner for treatment Accordingly Dhonkal was sent to Bikaner and was admitted in the hospital at Bikaner at about 8 P. M. the same day. At Bikaner he was examined by PW. 8 Dr. G. K. Bhatna-gar. He found 18 injuries on the person of Dhonkal. THE deceased, however, died as a result of shock and haemorrhage due to multiple wounds, injuries to left anterior tibial artery and multiple fractures of various bones, at about 9-15 p. m. After necessary investigation, the police challaned the accused Ramkaran, Mehar Chand, Surja, Manphoola, alias Phulia, and Chunna in the court of Additional Munsiff-Magistrate 1st Class, Bikaner, for offences u/sec. 302 read with sec. 34, and sec. 148, 149 and 452, I. P. C. Learned Additional Munsif-Magistrate, First Class Bikaner, in due course committed the accused for trial to the court of Sessions Judge, Bikaner. During the course of the trial the prosecution examined 13 witnesses. All the accused denied having committed the offences and the accused Ramkaran, Meharchand, Surja Phulia and Chunna pleaded alibi. THE accused also examined 10 witnesses in their defence. At this stage it will not be out of place to mention that the prosecution rests its case against the accused on direct evidence consisting of the statements of the alleged eye witnesses Lalu son of Bhagirath, Ratiram, Kasba and Lalu son of Birbal, P. Ws, 1, 2,3 and 4 respectively, as also on the dying declaration Ex. P. 8 made before P. W. 7 Dr. Asharam Acharya, and P. W. 12 Hiralal Kaushik, Tehsildar Magistrate, Nokha.

(3.) THE only question which now remains to be considered is as to whether these accused have been properly convicted under sec. 302, I. P. G. It is clear from the medical evidence that the death was caused due to rupture of tibial artery and excessive bleeding from the same. THE Doctor has no where stated that the injuries found on the person of Dhonkal were individually or collectively sufficient in the ordinary course of nature to cause death. THE cause of death is said to be shock and haemorrhage due to multiple injuries. While judging the nature of the offence we have also to bear in mind the fact that none of the injuries were inflicted on any vital part of the body. All the injuries are either on the arm or the legs. If the tibial artery had not been cut, the man would not have died. This is admitted even by Dr. G. K. Bhatnagar, P. W. 8. Under these circumstances, it would not be safe to infer that the intention of the assailant was to make homicidal attack on Dhonkal. Dr. Tiwari, learned Dy. Govt. Advocate argued that the case is covered by 3rd clause of sec. 300, I. P. C. and, therefore, the accused are liable to be convicted under sec 302 I. P. C. It is argued by the learned Deputy Government Advocate that the beating was given to Dhonkal with the intention of causing bodily injury and the bodily injury intended to be declined was sufficient in the ordinary course of nature to cause death. It must, however, be remembered that but for the fact that tibial artery was cut, death might not have ensued. Clause 3 sec. 300, required that the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts. THE first part is subjective. It indicates that the injury must be an intentional one and not an accidental one. THE second part in objective and the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think, the first part is complied with because the injury which was intended to be caused was the one which was found on the person of Dhonkal, but the second part, in our opinion, is not fulfilled because but for the fact that the injury caused resulted in the rupture of the tibial artery, death might not have ensued. Moreover, it is not clear as to who was the author of the injury which resulted in the cutting of the tibial artery. Under these circumstances, we are of the opinion that the third clause of sec. 300 I. P. C. , does not cover this case. THE matter must still come within at least culpable homicide not amounting to murder. THE assailants made a severe attack on Dhonkal who was unarmed and caused as many as 18 injuries which resulted in 8 fractures of the various parts of legs and hand, e. g. , tibia, fibula, ulna, humerus etc. THE act which was done by these accused must be presumed to have been done with the knowledge that the death of Dhonkal was likely to be caused by such an act. THE case, therefore, in our opinion, falls within third part of sec. 299, I. P. C. as the act was done by the accused with the knowledge that they were likely by such act to cause death of Dhonkal. THE accused are, therefore, punishable under the second part of sec. 304 I. P. C.